Bricklayers, Masons, Lcoal No. 15, Etc.

National Labor Relations Board - Board Decisions

Feb 1, 1965

150 N.L.R.B. 1496 (N.L.R.B. 1965)

1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or restrain [a] person engaged in commerce or in an industry affecting commerce
[to wit , Cartage]," when such picketing has as in the instant case an object
of...
*
I would point out that Section 8(b) (7) (C) of the Act applies to picketing
having as an object the forcing of an employer to recognize and bargain with a
labor organization as the representative "of his [the employer 's] employees,"
which is not the situation in the instant case . Instead , the object in this case
was displacement of such employer's employees by the former employees of the
predecessor employer, Riss.
To conclude that Congress in enacting 8 (b) (7) (C) could have intended That
the situation here presented could fall into both sections of the Act should not
lightly be inferred , for it is a sound rule of statutory construction to apply that
portion of the Act which more nearly covers the situation existing rather than to
attempt to extend and apply another portion of the Act of doubtful application.
I can only conclude that:
(1) Section 8(b)(4)(D) and not Section 8 (b)(7)(A) was designed by the Con-
gress to resolve this type of dispute in the construction industry.
(2) That Section 8 (f) was designed to provide for unions in the construction
industry the right to seek representative status through prehire contracts ; a right
provided for industrial unions through representation proceedings under Section 9.
(3) That by seeking prehire contracts from Barcus for work which was not cov-
ered by the contract between Barcus and the Hod Carriers the Respondents raised
an appropriate question concerning representation in the manner permitted in the
construction industry by Section 8(f).'
Upon the foregoing findings of fact and upon the entire record in this case, I make
the following:
CONCLUSION OF LAW
Respondents have not engaged in unfair labor practices within the meaning of
Section 8(b) (7) (A) of the Act.
RECOMMENDED ORDER '
It is recommended that the complaint herein be dismissed in its entirety.
Bricklayers , Masons and Plasterers International Union of
America, Local No. 15 [Park Construction Company] and
Attilio Pizzi . Case No. 1-CB-911. February 1, 1965 „
DECISION AND ORDER
On August 14, 1964, ^ Trial Examiner William J. Brown issued
his Decision in the above-entitled proceeding, finding the Respond-
ent' had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed,
as set forth in his attached Decision. Therafter, the General
Counsel filed exceptions and a supporting brief and Respondent
filed a brief in opposition to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins]. .
150 NLRB No. 141.
BRICKLAYERS, MASONS, LOCAL NO. 15, ETC. 1497
The Board has reviewed the, rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The' rulings are hereby affirmed: The Board has considered the
Decision, the exceptions, the briefs, and the entire record in the
case, and herby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions :
The complaint alleged that Respondent Local 15 compelled the
Employer to lay off employee Attilio Pizzi because Pizzi was not
a member of the Respondent Local 15. The Trial Examiner
found that Respondent Union and the Employer had a collective-
bargaining contract giving preference to local area men and that
the Charging Party, Pizzi, who did not reside in the area, was
laid off for 8 days because of union pressure on the foreman to
hire a local area man.
The collective-bargaining contract covering the work project here
involved prohibited discrimination against employing "local men."
Pizzi was a member of Boston Local No. 3, affiliated with the
Respondent's International. He had been' employed on the Em-
ployer's Lexington, Massachusetts, school project since about Au-
gust 1963 and had taken a leave of absence in December and Janu-
ary 1964. This controversy centers around Pizzi's reporting to
work on February 3, 1964, and the reason' for the Respondent's
calling a work stoppage on that day.
The Trial Examiner found that the Respondent's shop steward
requested the Employer's foreman to employ a local area man if
Pizzi were reemployed and that the, work stoppage was to pro-
test rehiring of an out-of-the-area bricklayer. The General Counsel
has excepted to the Trial Examiner's finding, tirguing that the
Respondent's pressure was directed to hiring Local 15 members and
not local area bricklayers.
The issue is whether Respondent Union's "pressure was directed
to the hiring of men from the 'local geographical area or to the
hiring of members from the Respondent "Local." There is no
substantial dispute as to the facts.
The General Counsel rested his case on Foreman Varnerin's
testimony. Varnerin said that he laid off Pizzi for 8 days because
the Respondent had called a work stoppage to protest Pizzi's
reemployment on the Lexington project. Foreman Varnerin testi-
fied that, prior to the work stoppage, Respondent's shop steward,
Raymond Lally, told him that he "would have to hire, one of the
Waltham men if I wanted Attilio Pizzi to work there." Accord-
ing to Varnerin, Raymond Lally "claimed they had a lot of men
loafing there." Varnerin refused to hire another bricklayer on
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ground that he did not need more men. On redirect testimony,
Varnerin reiterated that Raymond Lally "told me that I would
have to put on another bricklayer if I wanted him [Pizzi] to
work."
The shop steward, Raymond Lally, testified to the same effect.
He said that: He asked Varnerin "to put on a local man"; he
tried "to convince him that we should have a local man there" ; he
told Varnerin that "we would have to reach some kind of decision
here on the hiring of either Attilio or hire a local man"; and
Varnerin "should hire a Waltham man." Raymond Lally also
testified, as„ had Varnerin, that he told Varnerin the reason for
his request was "because we have had-you could call it a depres-
sion in Waltham, I suppose, and we have had a lot of fellows-
good mechanics-loafing, and I felt it my duty to try my best to
get them to work."
The quotations above are all the record testimony of the foreman
and shop steward on the conversation between the two men re-
specting another hire if the Employer rehired Pizzi. The Trial
Examiner considered this testimony in the light of the existing
collective-bargaining agreement which provides, in pertinent part,
"In order to maintain a sufficient number of skilled 'mechanics- for
the area, there shall be no discrimination against employing local
men," and concluded that the shop steward's references to hiring
a "local" man were ambiguous and could as easily refer to hiring
a man from the geographical area as to hiring a Local 15 member.
He therefore found that the General Counsel had failed to establish
by a preponderance of the evidence that the layoff was discrim-
inatory. Accordingly, he recommended that the complaint be
dismissed.
The General Counsel, in support of his position, contends that :
The shop steward admitted on cross-examination that he would
not have called a work stoppage if Pizzi had been'a member of the
Respondent Local; the union president had complained to the
foreman at an earlier period that there were many men loafing
"in the local"; the foreman understood the shop steward's hiring
request to refer to hiring from Local 15; and the practice in the
industry was to hire half the men from the union chapter 'in the
project vicinity.
The General Counsel's argument rests on evidence taken out of
context. It does not bear directly on the steward's request to the
foreman respecting Pizzi. At most it raises a suspicion insufficient
to overcome the undisputed testimony as to happenings on the date
of the alleged discrimination.
BRICKLAYERS, MASONS, LOCAL NO. 15, ETC. 1499
Shop Steward Raymond Lally was asked by the General Counsel
on cross-examination whether he would have called the men off the
job "if Pizzi was also a member of Local 15." He answered, "No,
I wouldn't." The General Counsel then asked, "So it is fair to
say that you called the men off the job because Pizzi was not
a member of Local 15, is that correct?" The shop steward then
answered, "No." Thus, whatever weight is accorded the answer
to the first question, the steward made clear that the work stoppage
did not relate to Pizzi's nonmembership in Local 15.
Union President Thomas Lally testified that, at the start of the
Lexington project, some 6 months before the date of the alleged
discrimination, he told Foreman Varnerin that "there were many
men loafing in the local and we would like to get as many local
men on as we could." President Lally further testified that
Varnerin said "aside from the two or three company men he had
that he would hire ' all local men." This testimony is subject to
the same ambiguity as is present with respect to mention of the
word "local" throughout the record. • The conversation, apart from
its ambiguity, is too remote from the happenings in issue to be
given much probative weight.
Foreman Varnerin testified that he told Steward Lally he would
not hire another man because "he didn't need any more men"
adding, as an aside at the hearing, his own view that "he [Shop
Steward Lally] wanted me to put' on another man from his own
local." Varnerin's view cannot add a request by the shop steward
that the shop steward did not make. To infer otherwise, in the
face of other uncontradicted testimony, would be unwarranted.
The record contains only the most general evidence respecting
industry practice in hiring. Foreman Varnerin testified that the
general practice was to hire 50 percent of the local men from the
local union and 50 percent outsiders, but that there was no written
agreement to this effect. He said that he, in accord with oral
conversation with President Lally at the start of the project, put
on more men from Local 15 but "it was nothing that I had to do,"
that he told President Lally "if I had friends of mine who came
along who had worked for me quite often, I couldn't very well
refuse them." Varnerin expressly denied giving a firm commit-
ment to President Lally that he would always have more men
from Local 15 on the job. We therefore cannot assume that the
shop steward's request to hire a local man was made pursuant to
such a commitment or to any more general practice in the industry.
On the record considered as a whole, we do not believe that we
are justified in overruling the Trial Examiner's finding that the
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel had failed to prove by a preponderance of the
evidence that Respondent's motive in opposing the reemployment
of Pizzi was to seek preference for its members rather than for
local area men.' Accordingly, we shall, as recommended by the
Trial Examiner, dismiss the complaint.
[The Board dismissed the complaint.]
' Local 369 , International Hod Carriers, Building and Common Laborers Union of
America, AFL-CIO (McClosky Construction Corp.) 147 NLRB 1209; Bricklayers, Masons
and Plasterers, etc., No. 28 ( Plaza Builders, Incorporated ), 134 NLRB 751; Bricklayers,
Masons and Plasterers , etc., Local No. 2 (Wilputte Coke Oven Division , Allied Chemical
Corporation ), 135 NLRB 323.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended , hereinafter called the Act, arose upon a charge duly filed on February 6,
1964, by Attilio Pizzi , an individual, the above -indicated Charging Party. The com-
plaint was issued March 18, 1964, by the General Counsel of the National Labor
Relations Board acting through the Regional Director for the Board 's Region 1. It
alleged, and the answer of the above-indicated Respondent , hereinafter called the
Union, denied , the commission of an unfair labor practice defined in Section 8(b)
(1) (A) and ( 2) of the Act , by compelling Park Construction Company, Inc., here-
inafter sometimes called Park , to release Pizzi from employment in the period Feb-
ruary 3 through 11, 1964 , because Pizzi was not a union member, thereby causing
and/or attempting to cause Park to discriminate against Pizzi and others in violation
of Section 8(a) (3) of the Act.
Hearing on the issues raised by the complaint and answer was held at Boston,
Massachusetts , on April 20, 1964 , before Trial Examiner William J . Brown. At the
hearing the parties were accorded full opportunity to present evidence and argument
on the issues. Subsequent to the close of the hearing the General Counsel and the
Respondent filed briefs which have been fully considered by the Trial Examiner. On
the entire record herein and on the basis of my observation of the witnesses I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
In accordance with the allegations and admissions of the pleadings , as amended at
the hearing , I find that Park is a Massachusetts corporation with its principal office in
Boston , Massachusetts, and a place of business in Lexington , Massachusetts , where it
is engaged as general contractor for the construction of a school building. During
the 12 months preceding issuance of the complaint herein Park purchased building
materials valued in excess of $50 ,000 from points outside Massachusetts and has
imported large quantities of such materials from sources outside Massachusetts for
use on the Lexington school project . It appears that Park is an employer engaged
in commerce and that its operations at the Lexington project affect commerce within
the meaning of the Act and warrant the assertion of jurisdiction herein.
H. THE RESPONDENT AS A LABOR ORGANIZATION
The pleadings and evidence establish and I find that Respondent is a labor organi-
zation having its principal office in Waltham ,- Massachusetts , and a territorial juris-
diction extending to and including Lexington , Massachusetts. It appears from a
stipulation of the parties that bricklaying work at the Lexington school project
referred to above is covered by Respondent 's collective -bargaining agreement with
Waltham and vicinity bricklaying employers , in evidence as General Counsel 's Exhibit
No. 2. -
III. THE UNFAIR LABOR PRACTICES
A. Circumstances surrounding Pizzi's discharge
The evidence indicates that bricklaying work on the Lexington school project
commenced sometime in August 1963. At that time Park's bricklayer foreman,
BRICKLAYERS, MASONS, LOCAL NO. 15, ETC. 1501
Angelo Varnerin, engaged in a prejob conference with Thomas Lally, president of
Respondent, with respect to employment of bricklayers on the project. The evidence
establishes that the general practice in the industry, to which both Park and the
Respondent appear to subscribe in principle, is that on a project like the Lexington
school undertaking where the Employer's home base is in the territorial jurisdiction
of another local union, there prevails, at least roughly, a 50-50 division between
bricklayers from the Employer's home area and from the area of the job in question.
The collective-bargaining agreement (General Counsel's Exhibit No. 2) referred to
above contains the following provisions:
In order to -maintain a sufficient number of-skilled mechanics for the area,
there shall be no discriminating against employing local men. (Article VII,
section 17.)
The employer agrees that it shall be a condition of continued employment for
a bricklayer, stone mason, cement finisher or plasterer to become and remain
a member of the [Respondent] union after seven days of the signing of this con-
tract or after seven days of the commencement of his employment, whichever is
later. (Article XIL)
.1
1
At the time of the prejob conference there were insufficient job opportunities in
the Waltham area to furnish employment for all Respondent's members. Thomas
Lally testified that Varnerin stated to him at that time that, apart from two or three
"company men," i.e., bricklayers who were regarded by the Company as particu-
larly suitable for steady employment and who regularly worked on Parks jobs both
in the home and field areas, he would accommodate Respondent by hiring men from
Respondent's out-of-work list in numbers exceeding the 50 percent general quota.
Varnerin testified, however, and I found him particularly credible on this score, that
he made no firm promise in this regard. The evidence indicates to me that Var-
nerin gave some general assurances to Thomas Lally that Parks would not insist on
a full 50 percent of company men but that the Union could' well expect to have the
job manned by its referrals to an extent greater than 50 percent of the total work
force.
The first bricklayers working on the Lexington school project appear to have been
Thomas Lally and his brother Raymond, shop steward on the project, and Pizzi and
Land, company men.
It appears that Pizzi and Land, both "company men," were the only bricklayers
from sources other than Respondent's area until sometime about Christmas of 1963
when Pizzi took a leave of absence to visit Italy. He appears to have an understand-
ing with Varnerin that he would return to the Lexington job on the expiration of
his visit to Italy. The evidence establishes that this leave of absence arrangement
was never discussed with or revealed to the Respondent, until after Pizzi's return to
the job.
On February 3 Pizzi returned to the jobsite. At that time there were 13 brick-
layers scheduled to work exclusive of 1 man (a Respondent area man) absent on
sick leave, and also exclusive of Pizzi. The workday starts at 8 a.m. About 7:45
a.m., Respondent's shop steward, Raymond Lally, noted Pizzi at the job and asked
him if he were going to work. When Pizzi stated that he was, Lally asked Varnerin
about it and Varnerin confirmed that Pizzi was going to work. Steward Lally then
asked Varnerin to put on another man from Respondent's area to work and Var-
nerin refused to do so. About this time the whistle blew and the men commenced
work. Lally continued to press Varnerin for the,employment of another Local 15
area man but •Varnerin pointed out that he was still within the 50-50 rule and did
not need another man in addition to Pizzi. The evidence indicates that at some
point in this discussion Varnerin refused to continue the fruitless argument and at
that time Steward Lally instructed the bricklayers to quit work and go to the shanty.
After a period consultation of the several Park officials' on the scene among them-
selves, Varnerin asked Lally if the men would work if Pizzi did not and when told
they would, Varnerin discharged Pizzi. , .
The foregoing analysis of the evidence rests largely on testimony as to which there
is no genuine contest. There are two elements of the factual presentation which
require explanation, however. Steward Lally testified that on the morning of Feb-
ruary 3 he asked Pizzi if he were "hired" and that Pizzi (who did not testify) replied
affirmatively. This would by itself tend to support an inference that Respondent
regarded Pizzi as a new hire on the project. On cross-examination, however, Steward
Lally conceded that he had known Pizzi earlier on the project and knew of his plans
to visit Italy. I interpret the evidence as establishing that Lally knew Pizzi was a
"company man," had worked earlier on the job, and would probably return to it
after his visit to Italy.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The second item calling for analysis of the conflicting testimony relates to the
reason for Steward Lally's order to the men to halt work. He testified that his
purpose was to induce Varnerin to continue their discussion relating to the addition
of a local man. I find, however, on appraisal of all the evidence that the under-
lying reason for the order to the men to cease work was not to force continuance of
the discussion but to achieve the end sought by the discussion. The evidence clearly
reveals that the position asserted by the Respondent's officials on February 3 was
that another local man would have to be hired if Pizzi worked and that position
was pressed even though, according to Varnerin whom I credit, the Respondent was
told that only one additional man was needed on that day. The conclusion is sup-
ported by the undisputed evidence that the Respondent indicated a willingness to
resume work if Pizzi were taken off the job irrespective of whether or not a local
man were hired.
B. Conclusions respecting Pizzi's discharge
The evidence summarized above establishes, in my appraisal of it, that the
Respondent caused Park to discriminate against Pizzi. The Act does not, however,
proscribe either discrimination or coercion of discrimination; the prohibitions of the
Act run against encouragement or discouragement of membership in a labor organi-
zation. As the Supreme Court observed in Radio Officers' Union of the Commercial
Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17,
The language of § 8 (a) (3) is not ambiguous. The unfair labor practice is
for an employer to encourage or discourage membership by means of discrimi-
nation. Thus this section does not outlaw all encouragement or discouragement
of membership in labor organizations; only such as is accomplished by discrimi-
nation is prohibited. Nor does this section outlaw discrimination in employment
as such; only such discrimination as encourages or discourages membership in a
labor organization is proscribed.
The question here is whether or not the discrimination which, as I find, the
Respondent caused, encouraged or discouraged membership in a labor organization.
As noted above the agreement covering the Lexington area and which, as stipulated,
was observed by the parties, contains a union-security provision requiring employees
to become and remain members of Respondent from and after 7' days' work in the
area. There is no indication that the Lexington job was excepted from this. Pre-
sumably, the enforcement of this provision would have an effect of encouraging
membership by discrimination, yet such encouragement is permitted under the law.
The Respondent here sought something different from enforcement of a union-
security provision; it sought employment of a man from its own area. But in light
of the statutory -policy set forth in Section 8(f) permitting agreements- according
priority in referral to employees of a particular geographical area, it cannot be said
that the Respondent's aim was repugnant to the'policies of the law. Nor can it be
said , on the evidence in this case , that Respondent's action in causing discrimination
by Park against Pizzi had the effect of encouraging or discouraging membership in a
labor organization. Encouragement already existed in the 7-day union-security
agreement. Presumably the demand for employment of an area man had reference
to men residing in the geographical area of Local 15 but not necessarily members
thereof.
The evidence indicates that Respondent forced Pizzi off the job not because of his
union affiliation but because of his geographical origin. Presumably, from the stipu-
lation that the parties observed the agreement, Pizzi somehow satisfied the require-
ments of the union -security clause.
Also, according to Varnerin, Respondent's demand was not that a member of
Local 15 be hired but that a Waltham area man be hired. It cannot be presumed
that Respondent operates an illegal out-of-work list.
On the basis of all the evidence, it does not appear that it preponderates in favor
of the conclusion that the unfair labor practices alleged in the complaint have been
committed. The authorities cited by the General Counsel, Westwood Plumbers, 122
NLRB 726; Local 271, International Brotherhood of Electrical Workers (Philco Cor-
poration), 146 NLRB 397; Sightseeing Guides and-Lecturers Union Local 20076, etc.
(ABT Sightseeing Tours, Inc., et al.), 133 NLRB 985, and Local 610, United Brother-
hood of Carpenters and'Joiners of America, AFL-CIO (Cameron Store Fixtures), 122
NLRB 476, have been considered. I find them inapposite in view of their emphasis
on union membership as distinguished from the case here where there is admittedly
compliance with a lawful union-security clause and the discrimination was based on
geographical considerations not shown to be dependent on local union affiliation.
GENERAL ELECTRIC COMPANY 1503
CONCLUSIONS OF LAW
1. Park is an employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent is a labor organization within the purview of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and upon the
entire record in this case , it is recommended that the complaint herein be dismissed,
General Electric Company and International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO, Local 707,1 Peti-
tioner. Case No. 5-RM-180. February 1, 1966
DECISION AND ORDER DENYING MOTION
On June 6, 1950, Internation Union of Electrical, Radio and
Machine Workers, AFL-CIO, Local 707, herein called the Union,
was certified as bargaining representative for a unit of production
and maintenance employees, with specified exclusions, at the Em-
ployer's Cleveland Wire Works plant, Euclid, Ohio.2 Among the
exclusions were engineers, firemen, oilers, apprentices, and helpers,
who have been, and are, represented by International Union of
Operating Engineers and its Locals 589, 589-A, and 589-B .-I
On May 6, 1964, the Union filed a motion to clarify certification,
in which it moved the Board to find and declare that work known
as hydrogen or hydrolene producting unit is within the scope of
the unit for which it has been certified and should be performed
by unit employees. On June 11, 1964, the Employer filed a state-
ment in opposition and requested that the motion be denied. On
June 12, 1964, Operating Engineers filed a statement of position.
On July 20, 1964, the Board issued an order directing hearing,
referring the matter to the Regional Director for Region 8 and
directing that a hearing be held for the purpose of taking testimony
on the issues raised by the Union's motion. A hearing was held
on September 10, 1964, before Hearing Officer Henry G. Gieser.
The Hearing Officer's. rulings made at the hearing are free from
prejudicial error and are hereby affirmed. Thereafter, the Em-
ployer and the Union filed briefs.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its powers in connection with this case to a
1 Name as amended at the hearing.
2 Pursuant to Board Decision , 89 NLRB 726.
3 Pursuant to Board Decision, 43 NLRB 67, certifying Operating Engineers and Inter-
national Union of Firemen and Oilers jointly.
150 NLRB No. 138.
775-692-0--vol. 150-96